CHAPTER THREE
Concerns
for oil pollution have been treated with serious attention, under the various
laws, regulating environmental and oil pollution all over the world.
In Nigeria
for instance, there are both international and local legislations which have
been put in place to checkmate
incidences of petroleum and industrial pollution within the country.
Some of these laws are extensively reviewed below:
3.1 Local Legislations and
Decrees on Control of Oil Pollution in Nigeria
i. Oil in Navigable Waters Act[1]
This
Act, was formulated to implement the terms of the international convention for
the prevention of pollution of the sea by oil, 1962. and to make provisions for
such prevention in the navigable waters of Nigeria.[2]
The
provisions of section 1 of the Act,[3]
made it an offence for a Nigerian ship to discharge any oil into any part of
the sea which in relation to that ship, is prohibited sea area. Or if any
mixture containing not less than 100 parts of oil to which this section applies
is discharged from such a ship into such a part of the sea. To this effect, the owner or master of the
ship shall, subject to the provisions of this Act, be guilty of an offence
under this section.[4]
This section also applies to crude oil, fuel and lubricant oil and to heavy
diesel oil.[5]
section
3 of the Act, provides that if any oil or mixture containing oil is
discharged into waters from any vessel
or from any place or land, or from any apparatus used for transferring oil from
or to any vessel (whether to or from a
place on land or to or from another vessel). Subject to the provision of this
Act;
a. If
the discharge is from a vessel, the owner or master of the vessel; or
b. If
the discharge is from a place on land, the occupier of that place; or
c. If
the discharge is from apparatus used for transferring oil from or to a vessel,
then the person in charge of the apparatus, is guilty of an offence under this
section and shall be punished in accordance to the provisions of section 6 of
this Act 6(liability for oil pollution shall be treated in detail
under chapter four of this work).
This
section applies to the whole of the sea within the seaward limits of the territorial
waters of Nigeria
and all other waters (including inland waters) which are within those limits
and are navigable by sea-going ship.[6] However, the harbor authority may appoint a
place within its jurisdiction where the ballast water[7]
of vessels in which dangerous petroleum has been carried may be discharged into
the waters of the harbor. At such times and subject to such condition, as the
authority may determine, and where a place is so appointed, the discharge of
ballast water from such vessel shall not constituted an offence
under this section.[8]
For
the purpose of preventing or reducing discharge of oil or mixture containing
oil, into the sea, the Act empowers the minister of transport to make
regulations requiring Nigerian ships to be fitted with such equipment, and to
comply with such other requirements, as may be prescribed[9]
Failure to comply with such regulations attract punishment with a maximum fine
of two thousand naira[10]
Section
10 of the Act provides duties to report discharges of oil into waters of
harbor; if any oil or mixture containing oil is discharged from a vessel into
the waters of a harbor in Nigeria for the purpose of securing the safety of
vessel, or of preventing damage to the vessel or her cargo or of saving life;
or is found to be escaping her or to have escaped, into any such waters from a
vessel in consequence of damage to the vessel or by reason of leakage; or is
found to be escaping or have escaped into any such waters from a place on land.
The provision of this section of the law is apt in the sense that if such report made and on time too, it
will enabled the would be victims to put
up all available preventive measure to mitigate the effects of the pollution or
stem the extent of its disaster
However,
the owner or master of the vessel or the occupier of the place on land, as the
case may be, shall fort with, report the occurrence to the harbor master,
stating, in the case of a report by the owner or master of a vessel, whether it
falls within paragraph (a) or paragraph (b) of this subsection, and if he fairs
to do so, shall be guilty of an offence under this section and shall be liable
on summary conviction to a fine not exceeding N400.[11] This
is in line with the international standard requirement provided under article 6
of the international convention for the prevention of pollution from ship from
ship [12]
The
Act under section13, provides for enforcement and application of fine; where a
fine imposed by a court in proceeding against the owner or master of a vessel
for an offence under this Act is not paid at the time ordered by the court, the
court shall, in addition to any other powers for enforcing payment, have power
to direct the amount remaining unpaid to be levied by distress or otherwise
taken in execution by way of pounding and sale of the vessel, furniture and or
apparel.[13] Where a person is convicted of an offence
under section 1 or 3 of the Act, and the court imposes a fine in respect of the
offence, then, if it appears to the court that any person has incurred, or will
incur, expenses in removing any pollution, or making good any damage, which is
attributable to the offence, the court may order a whole or part of the fine to
be paid to that person for or towards defraying those expenses.[14]
However,
the Act empowers the minister of transport to exempt any vessels or classes of
vessels from any of the provisions of this Act or of any regulations made there
under, either absolutely or subject such conditions as he thinks fit.[15]
ii. Associated Gas Re-Injection Act[16]
The
Associated Gas Re-injection Act, is an act made to compel every company
producing oil and gas in Nigeria
to submit preliminary program for gas re-injection and detailed plans for
implementation of gas re-injection.
Duties
to submit preliminary program for gas re-injection is provided under section 1
of the Act.[17]
This section provides among other things that every company producing oil and
gas in Nigeria, shall not lather than 1st April, 1980, submit to the
minister a preliminary program for the visible utilization of all associated
gas produced from a field or groups of field; projects to re-inject all gases
produced in associated with oil but not utilized in all industrial process.[18]
However, it is a compulsory duty of the oil companies operating in the country
to submit detailed plans for implementation of gas re-injection as outlined by
the law[19]
Control
of gas flaring is treated under section 3 of the Act. This section state that
no company engaged in the production of oil or gas shall after 1st
January, 1984, flare gas produced in association with oil without a written
permission by the minister. Where the minister is satisfied after 1st
January, 1984, that utilization or re-injection of the produced gas is not
appropriate or feasible in a particular field(s), he may issue a certificate in
that respect to a company engage in the production of oil and gas;
(a) Specifying
such terms and conditions, as he may at his discretion choose to impose, for
the continued flaring of gas in the particular field or fields; or
(b) Permitting
the company to continue to flare gas in the particular fields if the company
pays such sum as the minister may from time to time prescribe for every 2.83.17
standard cubic metre (scm) of gas flared[20]”provided
that any payment due under this paragraph shall be made in the same manner and
be subjected to the same procedure as for the payment of royalties to the
federal government by companies engaged in the production of oil”.[21]
Penalties
under this Act
The
Act provides that, any person or persons who commit an offence under section 3
of this Act, shall forfeit the concessions granted to him in the particular
field or fields in relation to which the offence was committed.
In
addition to the penalties specified under sub-section (1) of this section, the
minister may order the withholding of all or parts of any entitlements of such
an offending person towards the cost of completion or implementation of a
desirable re-injection scheme, or the repair or restoration of any reservoir in
the field in accordance with good oil field practice.
iii. Oil Pipelines Act of 1990
The Oil Pipeline Act,[22]
makes provision for compensation in the event of oil spill through an oil
pipeline, the holder of the pipeline license is mandated to pay compensation to
any person whose land or interest in land (whether or not it is land in respect
of which the license has been granted) is injuriously affected; or to any
person who suffered damage by reason of any neglect on the part of the holder or his agents, servants
or workmen to protect, maintain or repair any work or structure executed under
the license. And to any person who suffered damage as a consequence to any
breakage of or leakage from the pipeline or an ancillary installation for any
such damage not otherwise made good.[23]
The
Act gave the jurisdiction to the court of law to hear and determine any dispute
as to whether any compensation is payable, as to the amount to be or to whom
such compensation is to be paid.[24]
The
award, nature and measurement of compensation will be concisely discussed in
chapter four of this work.
iv. Federal Environmental Protection Agency
Act
The Act[25]
was established under section 1. The agency is responsible for the development
and protection of the environment and biodiversity conservation and sustainable
development of Nigerian natural resources in general and environmental
technology including initiation of policy in relation to environmental research
and technology in Nigeria.[26]
According to the provision of section 21 of the Act
discharge of any
harmful quantity of hazardous substance (including oil) into the environment or
at the adjoining shorelines except where such discharge is permitted or
authorized under any law in force in Nigeria.
The defaulters shall on conviction,
be liable to pay a fine of N100,000 or imprisonment for 10 years, or both fine
and imprisonment. Where the offender is a body corporate, the fine is linked to
N500, 000 (criminal and civil liability for oil pollution is treated in
detailed under chapter four of this work. The provision of this section is dew
for review because if such meager amount as provided here is the only penal
measure available to or against the perpetrators of this evil, then the practical effect will be that these polluters
will construe the verdict as a fair bid which they can pay even ten times and
continue their business of indiscriminate environmental fouling.
Section
22 of the Act imposes duty on the owners or operators of vessels or onshore or
offshore facilities from which a discharge occurred to mitigate the damage by
giving immediate notice of the discharge to the agency and other relevance
agencies. And to begin immediate clean-up operation following the best available clean-up practice and
removal methods as may be prescribed by regulations made in Nigeria; and
promptly comply with such other directions as the Agency may from time to time prescribe.[27]
Any person who contravened the Act or
any regulation made there under, shall be
liable to a fine of N20,000 or two years imprisonment or both fine and
imprisonment.
3.2 International Regulatory
Bodies for Control and Prevention of Oil Pollution (IRBCPOP)
The
control of oil pollution is not limited to local legislations alone. There are
indeed, plethora of international conventions dealing on prevention and control
of oil pollution. Examples are seen below:
i. International
Convention on the Establishment of an International Fund for Compensation for
Oil Pollution Damage 1971.
This
convention[28] was adopted in 1971 and amended by the 1992
and 2003 protocols. The Convention establishes the international oil pollution
and compensation fund. To provide compensation for pollution damage, give
relief to ship owner in respect to additional financial burden imposed on them
by the liability convention. These relieves are subject to the conditions
designed to ensure compliance with safety at sea and other conventions.[29]
Article
4 (2) of the Convention, provides reasons for the establishment of the fund to
includes: where the victim of pollution damage has been unable to access
quantum of compensation measurable under the terms of liability convention as a
result of the following (a) no liability for the damage arises under the
liability convention; (b) the owner
liable for the damage under the
liability convention is financially incapable of meeting his obligations and
any financial security that may be provided under Article vii of the Convention
does not cover or is insufficient to satisfy the claims for compensation for
the damage I (c) where the damage exceeds the owners liability under the
liability convention.
If
the fund proves that the pollution damage resulted wholly or partly either from
an act or omission done with the intent or omission by the person who suffered
the damage or from the negligence of that person, the fund may be exonerated
from its obligation to pay compensation to such person. However, there shall be
no such exoneration of the obligation with regard to preventive measures.[30]
Amendment of
the Convention in 2003
The convention was amended by Article 6, of
the 1992 protocol and Article 2 of the 2003 protocols.
Article
6 of the 1992 protocol, provides that the aggregate amount of compensation
payable by the fund shall not exceed 135 million units of account.[31]
And the aggregate amount of compensation payable by the fund for pollution
damage resulting from natural phenomenon of an exceptional, inevitable and
irresistible nature shall not exceed 135 million units of account. Article 4
(5) of the protocol also provide that “where the amount for established claims
against the fund exceeds the aggregate amount for compensation payable under
paragraph 4, the amount available shall be distributed in such a manner that
the proportion between any established claim and the amount of compensation
actually recovered by the claimant shall be the same for all claimants”.
Limitation
of Action for compensation:
A right to compensation lapses unless an action is
brought to that effect or a notification is made within three years from the
date when the damage occurred. However, an action for compensation brought
after six years from the date of the occurrence of the damage shall not
succeed.[32]
On
the second hand, Protocol 2003, under Article 11, provides for the establishment
of the International Oil Pollution Compensation Supplementary Fund. To pay
compensation to any person suffering oil pollution damage, if such person has
been unable to obtain full and adequate compensation for an established claim
under the terms of the 1992 Fund Convention. That the total damage exceeds, or
there is a risk that it will exceed, the applicable limit of compensation laid
down by the convention.
ii. International
Convention for the Prevention of Pollution of the Sea by Oil:
This
convention was modified by two major international conferences; International
conference on prevention of the pollution of the sea by oil, 1962; which was
adopted on 18th May and 28 June, 1967. And the modification adopted
by the sixth Assembly of the Inter-Governmental maritime consultative
organization on 21st October, 1969 by resolution A. 175 (vi) which
came into force on 20th January, 1978.
Article11
(1)[33]
provides the scope of the convention to included; any of the territories of a
contracting government except (a) tankers of under 150 tons and other ships
under 500 tons or gross tonnage.
The
convention prohibits the discharge of oil or oil mixture from a tanker except
where (i) the tanker is proceeding en route(ii) the instantaneous rate of
discharge of oil content does not exceed 60 litre per mile (the total quantity
of oil discharged on a ballast voyage not exceed 1/15,000 of the total
cargo-carrying capacity (iv). The tanker is more than 50 miles from the nearest
land.[34]
Article
vi (2) provide penalties for an offence under the convention; when there is an
unlawful discharge of oil or oil mixture from a ship outside the territorial
sea of a territory, the contracting government must impose penalties that are
adequate in severity to discharge any such unlawful discharge of oil and shall
not be less than the penalties which may be imposed under the law of that
territory in respect of the same infringement within the territorial sea.
Limitation
to the prohibition of the discharge of oil under article 111 applies to the
follow; (a) the discharge of oil or oil mixture from ship for the purpose of
securing the safety of a ship,
preventing damages to ship or cargo, or saving life at sea; (b) the escape of
oil or of oil mixture resulting from
damage to a ship unavoidable leakage, if all reasonable precautions have
been taken after the occurrence of the damage or discovery of the leakage for
the purpose of preventing or minimizing the escape.[35]
iii. International Convention for the Prevention
of Pollution
from Ships (MARPO) 1973:
This
convention was adopted in Second Nev.1973, in London for the prevention of the pollution of
the marine environment through the discharge of harmful substances. Any
violation of the requirements of the convention within the jurisdiction of any
state party must be prohibited and sanctioned under the laws of that state
party.[36]
A
party may inspect a ship when it enters the port or offshore terminals under
its jurisdiction. If a request for an investigation is received from any party
together with sufficient evidence that the ship has discharged harmful
substances or any effluents containing such substances in any place. And the
reported of such investigation shall be sent to the party requesting it and the
administration for appropriate action.[37]
Prohibition of discharge of oil or oil mixture from ships into the sea
area is the responsibilities of the state parties under regulation 9 of Annex 1
of the convention.
iv. International
Convention on Oil Pollution Preparedness, Response and Co-operation, 1990:
This
convention was adopted in 1995, abbreviated as (OPRC) was adopted on 13th day of may
1995 at London: IMO B7, P. 990: 88 with the objective of strengthening the legal framework for the control of
environmental pollution by oil in general and marine pollution by oil in
particular The convention obliged the
state parties to mandate the operators of offshore units under its jurisdiction
to have oil pollution emergency plans.[38]
Article 4(1) of the convention mandated each state party to; (a) compare
masters of ships flying its flag and persons in charge of offshore units under
its jurisdiction to report without delay any event on their ships or offshore
unit involving discharge of oil; (b) require masters or other persons having
charge of offshore units under its jurisdiction to report without delay any
observed event at sea involving a discharge of oil or presence of oil; (c)
require persons having charge of sea ports and oil handling facilities under
its jurisdiction to report without delay any event involving a discharge of oil
to the competent authority; (d) mandate its marine vessel inspectors and other
appropriate officials to report any event of discharge of oil to the
appropriate authority without delay.
Article
5(1) of the convention provides duties of the state parties in respect to such
report to include but not limited to (a) assess the event to determine whether
it is an oil pollution incidents; (b) assess the nature, extent and possible
consequences of the oil pollution incidents; (c) and then inform all the states
whose interest are affected or likely to be affected the details of the
assessment and any action taken or intend to take, to deal with the incident.
Each
state party is mandated under the convention to establish a national system for
responding promptly and effectively to oil pollution incidents.[39]
3.3 Oil Pollution Laws of other Jurisdictions
For the fact that oil pollution speaks the
same language in all the countries of its incidents, it is pertinent to take a
look into the laws controlling oil pollution in other country of the world. In
this work, a research is conducted into the American Oil Pollution Act, 1990.
The
American Oil Pollution Act, (O.P.A)[40]
was signed into Lawson August, 1990.
The
OPA was formulated to improve the national ability of the American government
to prevent and respond to oil spills by establishing provision that expand its
ability in providing the money and resources necessary to respond to oil spill.
The Act also created the National Oil Spill Liability Trust Feud.[41]
This was made available to provide up to one billion dollars per spill
incident.
In
addition, the O.P.A provides for new equipments for contingences planning both
by government and industries. It also increases penalties for regulatory non
compliance, broadened the response and enforcement authorities of the
American’s government and preserved state authorities to establish laws
governing oil spill, prevention and response within their individual jurisdictions.
Section
1002 (a) of the Act provides that the responsible parties for a vessel or
facilities from which oil is discharged is liable for (1) certain specified
damages resulting from the discharged oil and (2) removal costs incurred in a manner consistent with the National
Contingences Plan (N.C.P).
S.
1002 (2) of the Act provides exception to the clean waters Act (CWA) liability
provisions to includes (1) discharge of
oil from public vessel and (2) discharge of oil from onshore facilities covered
by the liability provisions of the Trans-Alaska
pipeline Authorization Act.
The
liability for tank or vessel larger than 3,000 gross tons is increased to 1,200
dollars per gross tone or 10 million dollars which ever is greater.[42]
Responsible
parties at onshore facilities and deeper water ports are liable for up to
350million dollars per spill; holder of lease or permits for offshore
facilities, except deepwater ports, are liable for up to 75 million dollars per
spill, plus removal of costs.
However, failure to comply with the removal order
can result to civil penalties of up to 25,000 dollars for each day of
violation.
3.4 The Challenges of Court Jurisdiction on
Oil Pollution in Nigeria
Jurisdiction has been defined by the court in Satyan I.v. IMB ltd to mean “the
authority by which a court has to decide matters brought before it or take
cognizance of issues presented before it in a former way. Utilizing the powers
conferred upon it, the State High Court had before now, carried on an unlimited
jurisdiction over all matters including those pertaining to pollution.[43]
The court on the merit of this provision dispensed all the cases brought before
it on the same ground without want of jurisdiction.
However,
the constitution (suspension and modification) Decree,[44]
therefore, amended section 230 of the 1979 constitution. Which provides for the
jurisdiction of the Federal High Court to includes; jurisdiction on matters
relating to, “Mines and minerals, (including oil fields, oil mining, geological
survey and natural gas)”. In other words, this amendment, removed the powers of
the High Court, on the issues pertaining to pollution but re-invest it on the
Federal High Court.
The
confusion occasioned by the forgoing was noted in the case of SPDCN Ltd v Isaih,[45]
where the Court of Appeal contradicted itself by affirming the High Court
jurisdiction over claims arisen from oil pollution.
Furthermore,
S. 251 (1)(n) of the 1999 constitution has retained the exclusive jurisdiction
of the Federal High Court by providing that the court shall have and exercise
jurisdiction to the exclusion of any other court in civil causes and matters relating to ‘Mines and
minerals (including oil fields, oil mining, geological survey and natural
gas)”. Thus, this position has been affirmed in the case of SPDCN Ltd v Abel Isaih & 2 Ors, [46]where
it was held that matters pertaining to mines and minerals are within the
exclusive jurisdiction of the Federal High Court.
Similarly,
it is important to note that section 19 of the oil pipeline Act, which confers
jurisdiction on the High Court over the area where oil spill occur, can now be
red to mean Federal High Court, so as to escape the dangers of invalidation, on
the grounds of incompatibility[47]with
section 251(1) (n)[48].
However,
section 257 and 272 of the constitution made the jurisdiction of the State High
Court and the High Court of the Federal capital territory, subject to the
provisions of section 251 of the 1999 constitution (as amended).
Finally
the issue of jurisdiction can be summed up by the statement of Dr. Ayeni (Esg),
counsel to the appellant in the case of SLB
Consortium Ltd v. NNPC,[49]
where he argued that “The fact that a party is a Federal Government agent does
not place it under the exclusive jurisdiction of the Federal High Court. And
that the fact that a party is an oil mining company does not also mean that
actions in respect of commercial contracts in which a party can only be
sued in the Federal High Court.
Reference was made to this case in reaching decision on jurisdiction in Raithwaite v. Skye Bank Plc.[50]
However,
parties to oil pollution should always take to mind the provisions of section
251 (1) (n) (supra), when making decision on which court to bring their causes.
In all, I think, I agree with the submission of Prof. Chukwuemeria.71
where he stated that,
“the law need to confer concurrent jurisdiction on
both the Federal and States High Courts on the matters. This will make for more
expeditious and qualitative case treatment. It will also reduce the cost of
litigation as borne by already impoverished rural dwellers who are almost
always the victims of pollution in Nigeria”
[1] Oil in
Navigable Waters Act Cap 06 L.F.N, 2010
[2] Preamble
Ibid
[3] Ibid
[4] Section
1(1) ibid
[5] Section
(12) (C & b) ibid
[6] Section
3 (2) C, & a ibid
[7] Ballast water means a water rise as a result of
presences of sands beneath the ocean
[8] Section 3 (3) of the Act op. Cit
[9] S. 5 Ibid
[10] 12. S. 6 Ibid
[11] Section 10(2)
of the Act Ibid.
[12] Section 13 (1)
of the Act Ibid.
[13] 15 parties to the
convention shall co-operate in the detection of violation and the enforcement
of the provisions, using all ppropriate and practicable measures of detection
and environmental monitoring, adequate procedures for reporting and accumulation of
evidence if an inspection indicate a violation of the convention a report;
shall be forwarded to the Administration for any appropriate action.
[14] Section 13 (2) of the Act ibid.
[15] Section 15 of the Navigable waters Act ibid.
[16] Associated Gas Re-injection Act Cap. A25, L.F.N, 2010.
[17] Section 1 of the Act ibid.
[18] Section 1 (1) ibid
[19] Section 2 ibid.
[20] 22 Section 3 (1) & (2) a &b ibid
[21] ibid
[22] Oil Pipeline Act of 1990, Cap. 07 L.F.N, 2010.
[23] Section 11 (5) (a, b & c) of the Oil Pipeline Act. ibid
[24] Section
19 ibid. if there is any dispute as whither any compensation should be paid, as
to the amount to be
paid or as
to the person to whom such compensation
should be paid shall be determined by a court of law
[25] Federal
Environmental Protection Agency Act Cap. F 10 L.F.N, 2010.
[26] Section
5 of the Act ibid.
[27] Section
22 (2) (a, b & c) ibid.
[28]
International Convention on Establishment of an International Fund for
Compensation for Oil Pollution and damage.
[29] Article
2 (1) ibid.
[30] Article
4 (3) ibid.
[31] Article
4 (4) ibid.
[32] Article
6 ibid.
[33] Article
11(1) of the international Convention for the Prevention of Pollution of the
Sea by Oil.
[34] Article
111 (b) ibid.
[35] Article
iv ibid
[36] Article
iv of the International Convention for the Prevention of Pollution from Ships.
[37] Article
6 (5) ibid
[38] Article
3 of the International Convention on Oil Pollution Response and Co-operation
[39] Article
6(1) ibid.
[40] www.epa.gov/opaova.ntmemergencymangement
44. American Oil Pollution Act 1990
[41] ibid
[42] S. 1004
of the Oil Pollution Act (OPA)
[43] By
virtue of S. 236 of the 1979 Constitution of Nigeria which is in pari material
with S. 251 (1) of 1999 constitution
[44] 1993
Constitution (Suspension and Modification) Decree
[45] [1997]6
NWLR (Pt. 508) 236
[46] [2001]
FWLR (Pt.56) 608 SC
[47] Section
101 of 1999 Constitution (as amended)
[48] ibid
[49] [2011]9
NWLR (Pt. 1252) 317 SC
[50] 2012]
CLR 12 (e) (SC)
71 Andrew.I.Chukwuemeria
“New Dimension in Commercial and Oil and Gas Law”(Law House Books Portharcort,2007)
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